Introduction:

In the case of XXX v. State of Kerala and Anr. [Bail Appl. No. 7916 of 2025; 2025 LiveLaw (Ker) 384], the Kerala High Court, through Justice Bechu Kurian Thomas, granted regular bail to the petitioner who was accused of enticing a married woman into sexual intercourse under the false promise of marriage. The petitioner was booked under Sections 84 [Enticing or taking away or detaining with criminal intent a married woman] and 69 [Sexual intercourse by employing deceitful means etc.] of the Bharatiya Nyaya Sanhita (BNS), 2023, after allegations surfaced that he not only engaged in sexual relations with the complainant—a married woman—but also threatened to release her photos and videos online and extorted ₹2.5 lakhs from her. This case invited judicial scrutiny on whether promises of marriage could sustain a charge of sexual assault when the woman involved was already married, and both parties were aware of her marital status, raising crucial questions on consent, deception, and the scope of Section 69 of the BNS.

Arguments of the Petitioner and Prosecution:

Appearing for the petitioner, advocates Ameen Hassan K. and Rebin Vincent Gralan argued that the entire case of the prosecution was inherently flawed as it rested on the complainant’s allegation that she was sexually exploited on a false promise of marriage, despite her existing marriage. They submitted that it was illogical and legally untenable to allege inducement on the basis of a promise of marriage when the complainant’s marriage was subsisting and known to both parties, emphasizing that under no circumstance could the promise of marriage be enforceable or realistic in such a scenario. They relied on precedents like Anil Kumar v. State of Kerala (2021) and Ranjith v. State of Kerala (2022), where the Kerala High Court had categorically held that if both parties are aware of a subsisting marriage, any purported promise to marry cannot be considered credible or capable of inducing consent under deceitful pretenses. The defense contended that the relationship between the petitioner and complainant was consensual and that the accusations regarding threats to publish photos and videos and the alleged extortion were afterthoughts fabricated to implicate the petitioner with ulterior motives. They submitted that the petitioner had cooperated fully with the investigation, posed no threat of absconding, and that continued detention would amount to an abuse of the process of law given the bailable nature of Section 84 and the questionable applicability of Section 69.

Representing the State, Public Prosecutor Noushad K.A. opposed the bail plea by asserting that the allegations against the petitioner were grave and pointed to exploitation, intimidation, and financial extortion. He argued that the complainant’s statement detailed how she was lured into a sexual relationship on the promise of marriage, and subsequently subjected to blackmail with threats to publish intimate images if she failed to pay ₹2.5 lakhs. The prosecution submitted that the promise of marriage, coupled with threats and financial coercion, constituted a clear case of sexual exploitation using deceitful means under Section 69 of the BNS, warranting custodial interrogation to ensure a thorough investigation into whether the petitioner’s conduct extended beyond mere consensual sexual relations into criminal intimidation and extortion. The State emphasized that granting bail at this stage could embolden the petitioner to tamper with evidence, influence witnesses, or further traumatize the complainant, thereby obstructing the course of justice. The prosecution also argued that the allegations involved significant moral turpitude, and the Court should exercise caution in releasing the accused given the seriousness of the charges.

Court’s Judgment:

Justice Bechu Kurian Thomas, after carefully considering the submissions, found merit in the petitioner’s argument that the foundation of the prosecution’s case under Section 69 appeared legally untenable, since the admitted position was that the complainant was married at the time of the alleged inducement, and both she and the petitioner were fully aware of her marital status. The Court referred to the binding precedents in Anil Kumar and Ranjith, reiterating the settled principle that a promise of marriage cannot legally induce consent for sexual intercourse when both parties are aware of the impossibility of a legitimate marriage due to an existing marital bond. Justice Thomas observed, “Once the admitted case of the prosecution itself is that the de facto complainant is a married woman, there cannot be sexual intercourse with the promise of marriage. If both of the parties are aware about a subsistent marriage, it cannot be alleged that the sexual intercourse between them was with a promise to marry.” The Court held that a false promise of marriage must necessarily involve a believable prospect of marriage at the time of inducement, which could not exist in the present case where the complainant’s marriage was undisputedly subsisting, rendering the prosecution’s core allegation under Section 69 prima facie unsustainable. Regarding Section 84, Justice Thomas noted that it was a bailable offence, and the allegations under this section did not justify continued detention since the investigation was already well underway and the petitioner’s custodial presence was not indispensable. The Court, however, acknowledged the seriousness of the allegations regarding threats and extortion but opined that these issues would require a thorough evaluation of evidence at trial, which could not be prejudged at the bail stage. The Court also took into account that determining the consensual nature of the relationship involved appreciating disputed facts that could only be resolved during trial, not at the stage of bail consideration. Significantly, Justice Thomas clarified that observations made in the order were solely for deciding the bail application and should not influence the merits of the criminal proceedings. Considering all these factors, the Court allowed the bail application, granting regular bail to the petitioner on the condition that he shall cooperate with the investigation, appear before the investigating officer as and when required, refrain from intimidating the complainant or tampering with evidence, and abide by any other directions imposed by the trial court or investigation authorities.